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Does your Will reflect your will and is that morally right?

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About Stuart

By Stuart Downey

As a contentious trust and probate practitioner I have come to understand how emotive the whole issue of inheritance is. Should your parents leave their worldly wealth to you? What provision should you make for your second time spouse in preference to the children of your first marriage? Should you treat your children equally? Should you prefer charities or close friends over family?

These are but a few of the dilemmas faced by us when deciding how to leave our estates on our death.

The whole issue has become super heated in consequence of people increasingly making their retirement plans on the basis of expected inheritances, the proliferation of second marriages and people living longer and increasing incidences of dementia.

Many of my clients who might be classified as “disappointed beneficiaries” find it hard to accept the concept of freedom of testamentary disposition – that is freedom of people within this jurisdiction to leave their property as they decide and see fit. Many clearly feel that some sort of moral imperative should apply in order to recognise familial relationships. They assume and expect that Courts might apply such moral imperatives in aid of challenging a Will which they feel is unfair.

The reality is however that the Courts are not Courts of morals they are Courts of law. If a Will is valid (properly constituted, made free of undue influence and with full understanding etc) then the law dictates that the deceased’s estate will be distributed in accordance with the terms of that Will.

Many civil law jurisdictions in Islamic countries and countries such as France, Italy, Spain and Japan have what are known as forced heirship laws. Such laws dictate that a person’s estate or at least part of their estate is required to be left for the benefit of certain family members and dependents. Critics of such laws question whether it cannot be any less repugnant to force a deceased person to distribute their assets in a certain manner on their death than it would be to tell them how they may do so during their lifetime.

Does forced heirship represent a better way? Well the truth is that in this country we have a degree of forced heirship by what might be described as “the back door”.

First of all if you die without making a Will then your estate will be distributed in accordance with what are known as the Intestacy Rules. These statutory rules prescribe exactly how one’s estate will be dealt with if you have not made a Will. They essentially provide for the division of your estate in favour of family members – in effect applying the devolution of your estate by hierarchical structure.

Secondly, certain categories of people can bring claims against a deceased person’s estate on the grounds that their Will or the intestacy provisions did not make reasonable financial provision for them: claims under the Inheritance (Provision for Family and Dependants) Act 1975. Spouses, ex spouses, dependents and children fall within the categories of persons who can make such claims. The right to bring a claim does not of course mean that a claim will be successful. The law relating to such claims is beyond the remit of this short article but suffice it to say claims by deserving spouses who have not been properly provided for have a high incidence of success as do claims by minor children. Claims by adult children are much harder to formulate and progress successfully.

The best way of approaching these difficult moral decisions and the best way of seeking to ensure that strife does not follow death is to consider most carefully what provision one should make for those who might have some reasonable, proper and indeed moral expectation of an inheritance. As a contentious practitioner in this field I can only emphasise that money spent in obtaining and listening to good legal advice prior to executing a Will is money well spent because if disappointed beneficiaries pursue claims for reasonable financial provision against the estate or claims challenging the validity of a Will then very significant legal costs will be incurred to the detriment of all.

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